Low Hop Bing J:

Appeal

This is an appeal in enclosure (13) filed by the judgment debtor (& the JD& ) against the decision of the learned registrar who had on 8 November 2002 dismissed with costs the JD's application vide enclosure (8) by way of summons in chambers which sought to dismiss with costs the creditor's petition (& the CP& ) pursuant to Bankruptcy Act 1967, ss. 6(3) 1967.

A reference hereinafter to a section is a reference to that section in the Bankruptcy Act 1967, unless the context otherwise requires.

Factual Background

On 13 March 2000, the judgment creditor (& the JC& ) entered into and recorded a consent judgment (& the judgment& ) against, inter alia, the JD vide Seremban High Court Suit No. 22-177-1999.

On 28 February 2001, on the ground that the JD has failed, neglected and omitted to abide by the judgment, the JC filed a request to issue a bankruptcy notice together with a bankruptcy notice.

On 25 Friday May 2001 at 11.15am, a certified true copy of the judgment, a copy of the request and a sealed copy of the bankruptcy notice were served on the JD.

On 9 August 2001, the JC filed the CP together with an affidavit affirmed by one Lee Hon Siong on 31 July 2001, verifying the CP.

A sealed copy of the CP together with the affidavit of Lee Hon Siong was served on the JD on 27 February 2002.

At all material time, even until today, there has been no attempt by the JD to comply with the judgment sum stated in the bankruptcy notice and the CP. Videenclosure (8), the JD prayed for an order that the CP be dismissed on two groundsviz. that the date of the act of bankruptcy stated in the CP is incorrect and that the incorrect date cannot be cured by amendment.

Incorrect Date

Mr. L.H. Chua learned counsel for the JD submitted that the CP is defective, invalid and of no legal effect as the date of the act of bankruptcy was far from being correct, as the date, if at all, should have been 7 June 2001 and not on 2 June 2001 as stated in para 4 of the CP. The JD relied on rr. 2, 66 and 276 of the Bankruptcy Rules 1969 (& the BR& ) as amended vide Am. PU(A) 60/93, and Rules of the High Court 1980, O. 1r. r. Rules of the High Court 1980, O. 2(1) and Rules of the High Court 1980, O. 3 r. Rules of the High Court 1980, O. 2(1), (2) and (5) of the Rules of the High Court 1980 ('the RHC'), adding that bankruptcy proceedings are of a quasi-penal nature in which procedural requirements must be strictly complied with, on the basis of Re Pg. Ahmad bin Pg. Haji Abdullah; Ex Parte: Oriental Bank Bhd. [1991] 3 CLJ 2899; [1991] 3 CLJ (Rep) 463.

He also submitted that there was a lacuna in r. 66 of the BR by virtue of which, under r. 276 thereof, resort can be had to the RHC.

For the JC, Mr. Norazam bin Mohd Daud responded that under r. 66 of the Bankruptcy Rules read with s. 3(1)(i), the correct date was 2 June 2001, and that the RHC would not apply here.

I shall first deal with the preliminary issue pertaining to the application of the relevant rules regulating the reckoning of the seven-day period as contained in the expression & within seven days after service of the notice& under s. 3(1)(i).

Rule 2 of the BR specifically provides for the application of the BR to all proceedings in bankruptcy under the Bankruptcy Act 1967. The time of day of service is contained in r. 66 of the BR which merits reproduction as follows:

66. Time of day of service.

Service shall be effected before the hour of half past three in the afternoon, except on days preceding weekly holidays when it shall be effected before the hour of 12 noon. Service effected after half past three in the afternoon on any week day except the day preceding a weekly holiday shall, for the purpose of computing any period of time subsequent to such service, be deemed to have been effected on the following day. Service effected after 12 noon on a day preceding a weekly holiday shall for the like purpose be deemed to have been effected on the day following the week